Capitol Correspondence - 08.11.20

State COVID-19 Triage Policies Alarm Disability Advocates

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As reported by Politico Pro:

“State policies for rationing health care during the coronavirus pandemic could allow doctors to cut off treatment for some of the sickest patients in hot zones and revive the specter of so-called death panels, say disabled rights groups who are rallying the Trump administration to intervene.

The effort has recently gained urgency due to guidelines in Texas and Arizona that let doctors base treatment decisions on factors like a patient’s quality of life if they survive, or the odds they’ll live at least five years. The advocacy groups since March have filed an unprecedented 11 complaints with the Department of Health and Human Services’ Office of Civil Rights, which has mediated four cases and could add more as Covid-19 continues to spread across most of the country.

The administration’s point person is Roger Severino, an anti-abortion conservative who heads the civil rights office and has expressed concern about the way health providers measure disabled patients’ odds of survival.

‘They’ve been a real partner since the beginning in immediately responding to these concerns —not just considering but immediately responding and saying, this is our issue too,’ said Shira Wakschlag, director of legal advocacy for The Arc. She said Severino’s policies have ‘sent a message to states across the country.’

Questions about allocating ventilators, staff and other scarce resources were circulating long before the pandemic and factored prominently the debate over Obamacare, when conservatives tried to whip up controversy over the idea of bureaucrats on death panels deciding who was worthy of care.

But the issue gained new resonance in June, when an Austin, Texas, hospital halted treatment of a quadriplegic patient who contracted Covid-19 and moved him to hospice care, where he died. ADAPT of Texas filed a complaint to HHS in late July seeking an investigation into the decision-making about the patient, Michael Hickson, which ran counter to his wife’s wishes.

HHS’ most sweeping action so far centered on Tennessee’s crisis standards of care. The state in late June agreed to update triage plans and clarify that providers only consider a patient’s chance of survival, not quality of life or issues strictly related to their disability. The policy — which the HHS says applies to patients with conditions like advanced neuromuscular disease, metastatic cancer, traumatic brain injury and dementia — is viewed by advocates as a blueprint for other states.

The groups are now setting their sights on Arizona, one of the nation’s Covid-19 hot spots, which issued a triage policy in June that critics say allows doctors to reject critically sick patients if they think they won’t live five years after a successful Covid-19 treatment.


The civil rights office is largely limiting itself to instances where advocacy groups file formal protests. Early during the pandemic, it reminded states that it would enforce federal anti-discrimination laws. But advocates say violations still occur, often out of ignorance. And because not all hospitals are open about their triage policies and some states lack clear standards, the groups sometimes have to rely on anecdotal evidence.

Concern about discrimination is rising as the pandemic swamps more states and tests hospitals and health systems in its path.


Most disability rights advocates acknowledge that a national standard for all the country’s hospitals isn’t practical, and that states need to act. Their goal is clear guidance that would discourage withholding care based on a provider’s idea about a patient’s quality of life or guesses about long-term survival. Disabilities should also be accommodated over the course of immediate and follow-up treatment, as guaranteed by the ADA and Obamacare, they say.”